United States v. Jorge De La Luz-Antonio , 349 F. App'x 977 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 22, 2009
No. 09-10077
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JORGE DE LA LUZ-ANTONIO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:08-CR-49-1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Jorge De La Luz-Antonio (De La Luz) pleaded guilty to transporting illegal
aliens. The presentence report (PSR) set De La Luz’s offense level at 18
pursuant to U.S.S.G. § 2L1.1(b)(6) based on a finding that “the offense involved
intentionally or recklessly creating a substantial risk of death or serious bodily
injury to another person.” De La Luz appeals the enhancement, asserting that
the adjustment should not have been applied because the aliens had access to
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 09-10077
oxygen, were not exposed to extreme temperatures, and could exit the vehicle
quickly if necessary. See United States v. Zuniga-Amezquita, 468 F.3d 886, 889
(5th Cir. 2006)(setting forth factors to be considered in applying this
adjustment).
Because the facts related to this adjustment are not in dispute, we review
de novo the legal question of the applicability of the adjustment. United States
v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005). According to the PSR and the
addendum, De La Luz was transporting 11 illegal aliens in a minivan rated for
seven passengers. See United States v. Mateo Garza, 541 F.3d 290, 294 (5th Cir.
2008)(indicating in dicta that a vehicle carrying four people more than its rating
would “[p]robably” be considered “substantially more” than the rated capacity
of the vehicle). Additionally, the rear seats of the vehicle had been removed, and
the deputy sheriff who had stopped the vehicle identified five unsecured cinder
blocks in the rear of the minivan, on which some of the aliens were sitting. The
blocks could overturn or become projectiles in the event of an accident, which
could cause injuries to an individual sitting on a cinder block or to others in the
vehicle. See Zuniga-Amezquita, 468 F.3d at 890. Therefore, the aliens faced a
greater “risk of injury . . . than that faced by an ordinary passenger, without a
seatbelt.” Id. In light of these aggravating factors, the district court’s imposition
of the enhancement is AFFIRMED.
2